Diamond Hill International Pty Limited v Xu [1999] NSWSC 783

New South Wales Supreme Court CITATION : Diamond Hill International Pty Limited v Xu [1999] NSWSC 783 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2017/98 HEARING DATE(S) : 26 July 1999 JUDGMENT DATE : 26 July 1999

PARTIES : Diamond Hill Internation Pty Limited (P) Humphrey Xu (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr. S. W. Climpson (P) Mr. P. Huntington (D) SOLICITORS : Donald Junn (P) Eric Fung & Co (D) CATCHWORDS : DECISION :

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 26 July 1999

2017/98 DIAMOND HILL INTERNATIONAL PTY LIMITED -v- HUMPHREY JIAN XU JUDGMENT

1 MASTER: There is presently before me a notice of motion filed on behalf of the defendant, Humphrey Xu, on 5 July 1999. That notice of motion seeks, substantively, an order that the orders which were made by myself on 1 July 1999 be set aside. 2 It is necessary for me to refer, at least in summary, to the procedural history of this matter. On 10 May 1999 Bergin J, sitting as duty Judge in the Equity Division, delivered an oral ex tempore judgment after a hearing occupying three days. 3 At that hearing each of the plaintiffs and the defendant was represented by Senior Counsel and Junior Counsel. Her Honour indicated that the plaintiff was entitled to orders for relief, including injunctive relief, in relation to a property known as 52 Sugarloaf Crescent, Castlecrag. The formal orders were pronounced by her Honour the following day, 11 May 1999, apparently after counsel had prepared short minutes of order and had agreed upon the terms of those short minutes as reflecting the orders which on 10 May had been indicated by her Honour. The orders were entered on 13 May 1999. 4 I have been informed that at the conclusion of her Honour's reasons for judgment on 10 May an application was made to her Honour by the defendant for a stay. Her Honour was disposed to grant a stay only until 13 May. In the meantime, however, on 12 May 1999 the defendant filed a notice of motion. That notice of motion sought substantively the following orders: (1) The orders by Bergin J made on 10 May 1999 be set aside or alternatively varied pursuant to Part 40 rule 9. (2) Alternatively that the orders made by Bergin J on 10 May 1999 be stayed for a period of 21 days. 5 I have been informed that the defendant also has instituted an appeal (described as a holding appeal) but that no application has been made to the Court of Appeal for a stay of the orders of her Honour. The notice of motion filed by the defendant on 12 May 1999 was returnable on 27 May 1999 and thereafter was adjourned on several occasions by the Registrar. 6 The matter was on 17 June 1999 stood over by the Registrar to 1 July 1999. On that latter date the plaintiff, Diamond Hill International Pty Limited, was represented but the defendant was not represented upon its own motion. The plaintiff therefore had the matter referred to the Duty Master in the Equity Division for the purpose of having the motion dismissed. 7 I was the Duty Master on that day and in the absence of any representative of the defendant in support of the defendant's own notice of motion I made the following orders dismissing that notice of motion, which the plaintiff requested should be made: (1) Order that the notice of motion filed by the defendant on 12 May 1999 be dismissed.